* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore is ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 21 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VERONICA WILSON; PETE TERRELL WILSON,Plaintiffs - Appellees/CrossAppellants, v. KENNETH MUCKALA, M.D.; COLUMBIA DOCTORS HOSPITAL OF TULSA, INC., doing business as Columbia Doctors Hospital,Defendants - Appellants/CrossAppellees. Nos. 00-5131, 00-5137, 00-5138

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-910-E)

Submitted on the Briefs: * Bill V. Wilkinson, Wilkinson Law Firm, Tulsa, Oklah oma, for Plaintiffs - Appellants.- 2 -

Stephen L. Andrew and D. Kevin Ikenberry, Stephen L . Andrew & Associates, Tulsa, Oklahoma, for Defendant - Appellee Kenneth M uckala. Stephen J. Rodolf, Karen L. Callahan and Leslie C. Weeks, Rodolf & Todd, Tulsa, Oklahoma, for Appellant Hospital.

Before KELLY , PORFILIO , and ANDERSON , Circuit Judges.

KELLY , Circuit Judge.

Plaintiffs sought to recover on several claims stem ming from alleged incidents of sexual harassment against an individua l doctor, the hospital where Plaintiff and doctor worked, hospital board members , and former owners. The district court granted summary judgment in favor of several Defendants, and the jury ultimately found for the remaining Defendants on all counts except negligent infliction of emotional distress. The jury awarded compensatory damages in the amount of $25,000 against Dr. Muckala, and $15,000 against the Hospital. In cross-appeals, Plaintiffs contest numerous evidenti ary and procedural rulings and Defendants challenge their liability for negligent infliction of emotional distress.

Background In 1997, Plaintiffs Veronica Wilson and her husbandPete Wilson filed suit based on Ms. Wilson’s alleged sexual harassment by Dr. Kenneth Muckala who was Vice-Chief and Chief of Staff of Columbia Docto rs Hospital of Tulsa, Inc.- 3 -

(“Hospital”) during Ms. Wilson’s employment there a s a psychiatric nurse. Ms. Wilson claimed that Dr. Muckala sexually harassed h er from September 1996 through March 1997, leading to her resignation fromthe Hospital in May 1997. Plaintiffs’ amended complaint alleged (1) state law claims for sexual assault and battery, tortious interference with con tract, and invasion of privacy against Dr. Muckala; (2) Title VII claims against t he Hospital, Columbia/HCA Healthcare (“Columbia”), and Healthtrust, Inc. (“HT I”); and (3) negligence against the Hospital, Columbia, HTI, and the indivi dual board members. Mr. Wilson claims loss of consortium against all Defend ants. The district court granted summary judgment in favo r of Columbia, HTI, and the board members. The doctor and the Hospital went to trial where a jury found in favor of Ms. Wilson and against both Defen dants on the negligent infliction of emotional distress claim, and for the Defendants on all other claims.

Discussion A. Negligent Infliction of Emotional Distress Agains t the Hospital Both Dr. Muckala and the Hospital challenge their l iability for negligent infliction of emotional distress. Prior to and fol lowing the jury verdict, both Defendants moved for judgment as a matter of law, b ut the district court denied their motions. Defendants now appeal.- 4 -

The Hospital argues that Oklahoma does not recogniz e a cause of action for negligent infliction of emotional distress. This p lain statement is not quite accurate. Rather, Oklahoma courts say that neglige nt infliction of emotional distress is not an independent tort, but is in effe ct the tort of negligence. Kraszewski v. Baptist Med. Ctr of Okla., Inc. , 916 P.2d 241, 243 n.1 (Okla. 1996); Lockhart v. Loosen , 943 P.2d 1074, 1081 (Okla. 1997); Mason v. State ex rel. Bd. of Regents of Univ. of Oklahoma , 23 P.2d 964, 969 (Okla Ct. App. 2000). A Plaintiff therefore cannot proceed on a n egligent infliction of emotional distress theory of liability separate from negligen ce, Lockhart , 943 P.2d at 1081, and the traditional elements of duty, breach of duty, causation, and damages apply. Kraszewski , 916 P.2d at 245. The question in this case is si mply whether the Defendants were justly found liable for neglige nce. In looking to the merits of Ms. Wilson’s claim soun ding in negligence, the Hospital contends that the lack of evidence of phys ical injury provides a basis for reversal. In Oklahoma, damages for mental anguish are recoverable only if they are “produced by, connected with or the result of p hysical suffering or injury to the person enduring the mental anguish.” Ellingtonv. Coca Cola Bottling Co. of Tulsa , 717 P.2d 109, 111 (Okla. 1986). This means that “[u]pon proper proof, the Plaintiff may recover for mental anguish where it i s caused by physical suffering and may also recover for mental anguish which infli cts physical suffering.” Id. ;1 The Court gave the Plaintiffs’ requested jury instruction as follows:

“Plaintiffs, Veronica Wilson and Pete Wilson, alleg e claims of negligent infliction of emotional distress against the Defend ants. The elements of a claim for negligent infliction of emotional distress are that (1) Dr. Muckala and/or Columbia Doctors’ Hospital engaged in negligent con duct; 2) Veronica Wilson - 5 - see also Slaton v. Vansickle , 872 P.2d 929, 931 (Okla. 1994) (“Oklahoma does acknowledge a claim for physical injury where it is accompanied by mental stress or mental stress is accompanied by physical injury” ). Oklahoma law obligated Ms. Wilson to provide proof of some physical injury, whether incurred contemporaneously with her emotional injury, or whe ther as a direct consequence of her emotional injury. The Hospital’s claim that there is no evidence thatMs. Wilson suffered any physical harm is not quite true. Some evidence cam e from her treating psychiatrist, who testified that following Ms. Wils on’s resignation from the Hospital, she described increasing feelings of humiliation, intimidation, very, very strong subjective unpleasant feelings, as well as...increasing depression. She had diffic ulty sleeping, crying, sad, gained weight, lost interestin working, felt not safe working as a nurse, at least at Docto rs. IV Wilson App. at 999. The Hospital requested that the jury instructions o n negligent infliction of emotional distress mention the required finding of physical injury consequent to the emotional distress–a request denied by the district court. 1 We review de novoand Pete Wilson suffered serious emotional distress ; and (3) Dr. Muckala and/or

Columbia Doctors’ Hospital’s negligent conduct was a cause of the serious emotional distress.” II Hospital App. at 311. - 6 - a timely challenge to a jury instruction to determi ne whether, considering the instructions as a whole, the jury was misled. Unit ed States v. Guidry , 199 F.3d 1150, 1156 (10th Cir. 1999) (internal citations omi tted). We reverse only when we “have substantial doubt that the jury was fairlyguided.” Id. In light of the clear requirement that physical dam ages accompany an award for mental distress or anguish, and the evidence of physical harm presented at trial, we find that the jury instructions on neglig ent infliction of emotional distress delivered by the district court were infirm and constitute reversible error. We need not reach the Hospital’s contention that, a s a matter of law, the Hospital had no common law duty to protect their employee, Ms. Wilson, from sexual harassment by Dr. Muckala. B. Negligent Infliction of Emotional Distress Agains t Doctor Muckala Dr. Muckala challenges the verdict on Ms. Wilson’s claim for negligent infliction of emotional distress because, though al leged in the original complaint, it does not appear in the amended complaint, and wa s not clearly alleged in the pretrial order. The doctor argues that, throughoutthe trial, he was unaware that the claim for negligent infliction of emotional dis tress remained alive, until after the close of the evidence, when Plaintiffs’ counsel sought a jury instruction on the- 7 -

claim against him as well as the Hospital. Dr. Muc kala then objected. The district court wrestled with the status of the negligent infliction claim, and whether it had been sufficiently alleged. Firs t, the court allowed it “[i]n consideration of fairness to the plaintiff.” Mucka la App. at 193. However, Defendants pointed out that the claim clearly had b een dropped in the amended complaint. In light of that argument, the court di sallowed the claim, ruling that the clause in the pretrial order saying that, “the defendants, are sued at common law,” was insufficient to resurrect a claim previou sly dropped from the case. Muckala App. at 195. The court speculated that the phrase, “the defendants”, was mistakenly carried over from the original pretrial order and included the board members who were no longer parties in the case. Mu ckala App. at 197. Finally, though, the court allowed the claim and instructed the jury accordingly “because of the conflict on that issue,” but it reserved rul ing on Dr. Muckala’s objection until after the verdict. The jury found for the Pl aintiff solely on the claim for negligent infliction of emotional distress. After the verdict, the court overruled the doctor’s objection, concluding that, despite th e wording of the amended complaint and the pretrial order, Dr. Muckala had n ot been unfairly surprised by the instruction to the jury. Muckala App. at 122-2 3. Dr. Muckala appeals the district court’s ruling. The original complaint clearly alleged the claim of negligent infliction of2 The court later allowed the Plaintiffs to add the t ortious interference with

contract claim. - 8 - emotional distress against Dr. Muckala, and the ame nded complaint just as clearly dropped the claim. The amended complaint alleged n egligence only against “the Defendants identified in paragraphs 3 and 4.” Muck ala App. at 30. The Hospital and the board members were named in paragraphs thre e and four, while Dr. Muckala was named in only the second paragraph. Mu ckala App. at 24-25. The amended complaint describes the negligence cause of action, but the heading of that section lists only the Hospital and the board members, and the descriptive language in that section cannot be construed to inc lude a claim against the doctor. Muckala App. at 30-32. Predictably, the doctor’s a nswer to the amended complaint addressed only the remaining claims–sexua l assault and battery, tortious interference with contract, and invasion o f privacy–and did not respond in any way to negligent infliction of emotional distre ss. Muckala App. at 132 (docs. 23-24). Ms. Wilson argues she reasserted negligent inflicti on of emotional distress in the pretrial order. However, the pertinent part s of that document are ambiguous. In the statement of the case, the pretr ial order states that Dr. Muckala is “a Defendant under two separate legal theories: sexual assault and battery, and invasion of privacy.” 2 Muckala App. at 37.- 9 -

The following paragraph, however, indicates general ly that “Defendants” are sued under common law negligence and negligent infliction of emotional distress. Plaintiffs argue that, though the order nowhere indicates that any claims have been added or amended, this paragraph alone su ffices to renew a previously dropped claim. The doctor’s actions belie Plaintif fs’ suggestion that he was apprised of the claim–his statement of issues in th e pretrial order was limited to the sexual assault and invasion of privacy claims, reflecting a belief that the negligent infliction of emotional distress claim wa s no longer part of the case against him. Upon Dr. Muckala’s motion for judgment as a matter of law at the close of Plaintiffs’ evidence, neither side mention ed the negligent infliction of emotional distress claim, instead focusing on the three claims still clearly in play. Muckala App. at 167-176. “When an issue is set forth in the pretrial order, it is not necessary to amend previously filed pleadings” because “the pretrial order is the controlling document for trial.” Expertise Inc., v. Aetna Fin. Co. , 810 F.2d 968, 973 (10th Cir. 1987); Fed. R. Civ. P. 16(e). As such, claims , issues, defenses, or theories of damages not included in the pretrial order are waiv ed even if they appeared in the complaint and, conversely, the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not inclu de that claim. The preparation of a pretrial order requires carefu l attention and review by- 10 -

the parties and their attorneys. While we recogniz e that “the pretrial order is treated as superceding the pleadings and establishi ng the issues to be considered at trial,” Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d§ 1522, we do not normally expect to see claims or defenses not contained in the pleadings appearing for the first time in the pretr ial order, especially in such cursory form. Such a practice deprives one’s adver sary of fair notice, possibly discovery, and the opportunity for motion practice, and is subject to abuse by those who employ a sporting theory of justice. The laudable purpose of Fed. R. Civ. P. 16 to avoid surprise, not foment it. See Clark v. Pennsylvania R.R. Co. , 328 F.2d 591, 594 (2d Cir. 1964) (the purpose of Ru le 16 is to replace “the old sporting theory of justice” with a policy of “putti ng the cards on the table”). Should a new claim or defense appear for the first time in the pretrial order, it is incumbent upon opposing counsel to meticulously examine the order, taking exception, if necessary, to the additions, and reco rding their objection in the pretrial order. Meanwhile, the party seeking to ad d a claim or defense should do so with specificity and clarity so as to minimize t he ill effects of that practice. Specificity and clarity provide the trial court wit h a fair opportunity to consider whether to approve or deny what is obviously an att empt to amend the pleadings at a rather late date. Fed. R. Civ. Pro. 15(a). Plaintiffs had ample opportunity to sculpt and refi ne the pretrial order to- 11 -

include every allegation against Dr. Muckala. Thei r duty to do so was especially important if they intended to include, as they cont end they did, a claim previously dropped in the amended complaint. Unfortunately, t he pretrial order does not clearly convey their purported intent to re-allege any claim. In dealing with an ambiguous pretrial order such as this, we must evaluate the order contextually to determine whether the cla im was contained therein. In this case, the clear language of the amended compla int, coupled with the ambiguous language of the pretrial order, lead us t o conclude that there was insufficient documentary support for the allegationof a claim of negligent infliction of emotional distress against Dr. Muckal a. Our conclusion is reinforced by the absence of any mention of this claim in the doctor’s answer to the amended complaint, or in the pretrial order statement of th e case, and the lack of any mention of the claim by Plaintiffs or Defendant at the hearing on Defendant’s Rule 50 motion at the close of Plaintiffs’ case, th ough all other claims were discussed. In light of these facts, we find that t he cause of action for negligent infliction of emotional distress did not run agains t Dr. Muckala and we reverse the verdict of liability on that claim. C. Evidentiary Rulings Plaintiffs appeal several of the district court’s d ecisions to exclude evidence, which we review for an abuse of discretio n. United States v. Becker ,- 12 -

230 F.3d 1224, 1232 (10th Cir. 2000). They argue f irst that the district court erred in prohibiting testimonial evidence of Dr. Mu ckala’s alleged extra-marital affairs. Plaintiffs sought to introduce the eviden ce for the purpose of impeaching the doctor’s deposition statement that he never sol icited or had an adulterous relationship while employed at the Hospital. Plaintiffs do not address the application of Fed. R . Evid. 608(b), which provides in pertinent part that “[s]pecific instanc es of the conduct of a witness, for the purpose of attacking or supporting the witn ess’ credibility,...may not be proved by extrinsic evidence.” Instead, Plaintiffs cites two cases, the first, United
States v. Barrett , 8 F.3d 1296 (8th Cir. 1993), is inapposite as it solely relates to the admissibility of hearsay. The court in the sec ond case, Livergood v. S.J.
Graves & Sons Co. , 254 F.Supp. 879 (W.D. Pa. 1965), admitted evidenc e of errant driving that took place only moments before the accident which was the subject of the case. The court found the evidence not “wholly collateral,” and therefore applied the test for relevancy. Livergoo d , 254 F.Supp. at 880. Testimony about Dr. Muckala’s sexual history is, onthe contrary, “wholly collateral,” and nevertheless exceedingly less rele vant than the evidence at issue in Livergood . We find no abuse of discretion as the Plaintiffs have not cited, nor do we see, any relevant legal basis for departing f rom Rule 608(b)’s command that extrinsic evidence not be used to impeach a wi tness.- 13 -

Plaintiffs also sought to introduce testimony regar ding alleged instances of past sexual harassment by the doctor in order to pr ove his “discriminatory intent” and “motive.” Evidence of other crimes, wrongs, oracts is inadmissible to prove the character of a person in order to show action i n conformity therewith. Fed. R. Evid. 404(b). However, evidence of prior bad acts is admissible for purposes other than to show action in conformity with charac ter. Id. Such purposes include, but are not limited to, proof of motive, o pportunity, intent, preparation, plan, knowledge, identity, or absence of mistake oraccident. Id. If offered for a proper purpose under Rule 404(b), the evidence of p rior bad acts is admissible only if (1) it is relevant under Fed. R. Evid. 401; (2) the probative value of the evidence is not substantially outweighed by its pot ential for unfair prejudice under Fed. R. Evid. 403; and (3) the district court , upon request, instructs the jury to consider the evidence only for the purpose for w hich it was admitted. Becker , 230 F.3d at 1232. Evidence of a defendant’s past sexual harassment ad mitted to prove discriminatory intent in cases of race and gender d iscrimination is admitted for a proper purpose under Rule 404(b). Spulak v. K-MartCorp. , 894 F.2d 1150, 1156 (10th Cir. 1990); Heyne v. Caruso , 69 F.3d 1475, 1479-80 (9th Cir. 1995). But as noted in Heyne , alleged previous harassment cannot be used to sho w that a defendant harassed a plaintiff on a specific subseq uent occasion. Heyne , 69 F.2d- 14 -

at 1480. As the district court noted in its ruling in this case, the Plaintiff conceded that the Hospital had no notice of the all eged prior incidents, so the testimony could not have been sought to prove the H ospital’s discriminatory intent. Further, there is no discriminatory intentelement in the claims brought against Dr. Muckala. And because these alleged pri or incidents of sexual harassment occurred in places outside the Hospital, they were not relevant to establish a hostile work environment claim. See Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1415 (10th Cir. 1987). Plaintiffs seek to admit this evidence, not to show discriminatory intent, but instead to prove th e fact of the harassment itself–exactly the purpose prohibited by Plaintiffs ’ cited cases and by Rule 404(b). The district court did not abuse its discretion in excluding evidence of alleged prior bad acts. Ms. Wilson challenges the district court rulings to (1) exclude the testimony of Amber Flint, a former employee of the Hospital allegedly fired for reporting charges of sexual harassment; (2) prohibi t Plaintiffs from mentioning Ms. Flint in the presentation of their case; and, ( 3) deny Plaintiffs’ request for supplemental discovery of the Hospital’s internal f iles on the sexual harassment charges brought by Ms. Flint. Ms. Wilson’s appellate brief describes at great len gth the circumstances of Ms. Flint’s termination and its relevance to Plaint iffs’ case. Plaintiffs wanted to- 15 -

show that the firing of Ms. Flint after she reporte d sexual harassment to the Hospital made Ms. Wilson hesitant to report her ownalleged harassment, thus explaining her delay. Unfortunately, Plaintiffs’ d iscussion omits numerous important details that formed the basis of the dist rict court decision to deem the evidence irrelevant–details such as Ms. Wilson’s ow n deposition testimony that she did not know Amber Flint, that she only heard arumor that Ms. Flint filed a sexual harassment claim, and that she did not know the outcome of Ms. Flint’s claim. III Hospital App. at 604-05. Furthermore, the defense presented evidence that Ms. Flint was still an employee during the tim e that Ms. Wilson claimed to be afraid to report her harassment. I Hospital Supp. App. at 270. Finally, there was evidence that Ms. Flint was not fired at all, but i nstead, terminated under hospital policy for per diem workers who do not complete a s hift within three consecutive months. I Hospital Supp. App. 268-69. After revie wing the record, we are convinced that the district court did not abuse its discretion when it disallowed evidence regarding Amber Flint. At trial, Ms. Wilson sought to introduce expert tes timony from her treating psychiatrist that she was telling the truth when sh e said she was a victim of sexual harassment. The district court limited the testimo ny, ruling that the witness would not be “entitled to opine on the veracity of [Ms. Wilson’s] complaint,...whether [the psychiatrist] believes sh e is telling the truth,” or- 16 -

“whether he believes that she was sexually harassed .” III Wilson App. at 826. The court did permit the witness to testify about M s. Wilson’s psychological condition and his treatment of that condition. Id. Trial courts have broad discretion to determine the admissibility of expert testimony and we review such decisions for abuse of discretion. Taylor v. Cooper Tire & Rubber Co. , 130 F.3d 1395, 1397 (10th Cir. 1997). Expert tes timony on the psychological and emotional traits of abuse vic tims is typically admissible, so long as the witness makes no comment on the allegedvictim’s credibility, or identify the alleged victim as a victim of abuse. United States v. Charley , 189 F.3d 1251, 1265 (10th Cir. 1999). The credibility of witness testimony is a matter left to the jury and generally is not an appropriat e subject for expert testimony. United States v. Adams , 271 F.3d 1236, 1245 (10th Cir. 2001) (internal ci tation omitted). The trial court did accurately and preci sely lay out the parameters of what the treating psychiatrist could testify to. P laintiffs cite no law, apart from Fed. R. Evid. 702 and 704, to support their claim t hat the testimony should not have been excluded “simply because it embraces an u ltimate issue to be decided by the jury–whether Veronica Wilson’s complaints an d symptoms are credible.” Wilson Br. at 55. We find no error in the distric t court’s ruling that the expert could testify to Ms. Wilson’s condition, but not gi ve his opinion on her credibility.- 17 -

Similarly, the district court prohibited testimony from a human resources expert regarding the Hospital’s response plan in ca ses of sexual harassment, and the reasonableness of the Hospital’s response to Ms . Wilson’s claim. The court found this expert testimony relevant, but excluded it because the facts were “not so complicated as to require the testimony of an expert witness on either the adequacy of the plan or policy or the investigation ” that followed. III Hospital App. at 781. In reviewing a trial court’s exclusio n of evidence, “we will reverse only if the exclusion is an abuse of discretion that results in ‘manifest injustice to the parties.’” Thompson v. State Farm Fire & Casua lty Co. , 34 F.3d 932, 939 (10th Cir. 1994) (citations omitted). The ‘touchstone’ of admissibility of expert testimo ny is its helpfulness to the trier of fact. Werth v. Makita Elec. Works, Lt d. , 950 F.2d 643, 648 (10th Cir. 1991). “When the normal experiences and qualificat ions of laymen jurors are sufficient for them to draw a proper conclusion fro m given facts and circumstances, an expert witness is not necessary and is improper.” Frase v. Henry , 444 F.2d 1228, 1231 (10th Cir. 1971). After revi ewing the record, we agree with the district court that the issues to wh ich Ms. Wilson’s expert would have testified were not so impenetrable as to requi re expert testimony. The district court did not abuse its discretion in excl uding the testimony of the human resources expert.- 18 -

D. Dismissal of Hospital Board Members and Corporate Entities Plaintiffs challenge the district court’s grant of summary judgment to Defendants Columbia/HCA Healthcare (“Columbia”), He althtrust, Inc. (“HTI), and the Hospital Board Members. “We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court...” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (citation omi tted). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). Inexplicably, Plaintiffs’ counsel agreed to the dis missal of HTI in a joint stipulation, filed on February 11, 1999. II Hospit al App. at 173-74. Regardless, HTI and Columbia provided uncontroverted documentary evidence, including a bill of sale, showing that they did not own the Hos pital at the time of the alleged sexual harassment. I Hospital Supp. App. at 210-21 1, 317. As countervailing evidence, Plaintiffs offer only the Defendants’ fai lure to specifically deny ownership in their answer to the original complaint , and the dubious assertion that the “names by which the Hospital has been known” su ggest ownership by HTI and Columbia. We review the record in the light most f avorable to the nonmoving party, Thournir v. Meyer , 909 F.2d 408, 409 (10th Cir. 1990), but this gene rous- 19 -

standard cannot compensate for the Plaintiffs’ comp lete lack of “specific facts showing there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). We find no error in the dismissal of Columbia and HTI. Plaintiffs claimed only negligence against the Hosp ital board members. Upon finding no statutory or common law duty to pro tect another person–Ms. Wilson in this case–from sexual harassment, the dis trict court granted summary judgment for the board members. Plaintiffs appeal that decision. The jury found against Dr. Muckala only on the negligent inflictio n of emotional distress claim, which we reverse on appeal as insufficiently allege d. Consequently, we find that, even if it was error to grant summary judgment for the board members, any error was harmless. Plaintiffs could not have sustained a cause of action in negligence against these individuals when the alleged perpetrator himself was exonerated of negligence. The district court ruled on summary judgment that D r. Muckala was not a hospital employee–a ruling Plaintiffs challenge on appeal. Under the state law standards set forth in Sawin v. Nease , 97 P.2d 27, 29-32 (Okla. 1939), the touchstone of an employment relationship is the rig ht to control the means and manner of the worker’s performance. See also Zinn v. McKune , 143 F.3d 1353, 1357 (10th Cir. 1998). In determining whether one is an “employee” under Title VII, we have considered the following factors:- 20 -

(1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisoror is done by a specialist without supervision; (2) the skill requi red in the particular occupation; (3) whether the employer or the employe e furnishes the equipment used and the place of work; (4) the lengt h of time the individual has worked; (5) the method of payment, w hether by time or by job; (6) the manner in which the work relationsh ip is terminated; (7) whether annual leave is afforded; (8) whether the w ork is an integral part of the business of the employer; (9) whether the worker accumulates retirement benefits; (10) whether the e mployer pays social security taxes; and (11) the intention of the parti es.

Id. Plaintiffs provide little evidence pertaining to th ese factors, but point exclusively to the doctor’s role as Chief of Staff. However, the Hospital introduced significant evidence that the doctor was an independent contractor, not a salaried employee, and that his service as Chief of Staff was a collateral duty to which he was elected by his peers and paid $1000 pe r month from staff dues. In light of this explanation, the doctor’s role as Chi ef of Staff and the associated monthly check do not even approach an adequate show ing that the Hospital controlled the means and manner of Dr. Muckala’s pe rformance. The district court did not err in granting summary judgment on this issue. Plaintiffs also find error in the district court’s rejection of the apparent authority or aided-by-the-agency theory of liability for sexual harassment. An employer might be vicariously or directly liable fo r a hostile work environment created by its employees. Harrison v. Eddy Potash, Inc. , 158 F.3d 1371, 1376- 21 -

(10th Cir. 1998). In the usual case, vicarious lia bility stems from a supervisor’s misuse of actual authority. Id. at 1377. In addition, an employer may be vicariously liable when the harassing employee has apparent authority–gives “the false impression that the actor was a supervisor, w hen he in fact was not, [and] the victim’s mistaken conclusion [was] a reasonable one.” Burlington Indus. Inc. v. Ellerth , 524 U.S. 742, 759 (1998). This is the unusual ca se. Id. We must look for evidence that “the [harassing employee] purport ed to act or speak on behalf of the [employer] and there was reliance upon apparentauthority, or the [harassing employee] was aided in accomplishing the tort by th e existence of the agency relation.” Burlington Indus. Inc. , 524 U.S. at 758 (quoting Restatement (2d) of Agency § 219(1)). The district court found on summary judgment that there was no support for an apparent authority theory of vicarious liability . Ms. Wilson cites her own affidavit testimony that she felt Dr. Muckala, as C hief of Staff, had power and authority over her job, and that he told her he had such power because of his position as well as his friendship with the Hospita l CEO. However, Ms. Wilson received assurances from her immediate supervisors that Dr. Muckala exercised no authority over her position, and in describing h er chain of command, identified her supervisors and the administration, but did notimply that Dr. Muckala had a place in it. We agree with the district court thatthere was insufficient evidence- 22 -

put forward to demonstrate that Dr. Muckala, who ha d no actual authority over Ms. Wilson, exercised apparent authority over her. Furthermore, under Oklahoma law, apparent authority“results from a manifestation by the principal to a third person th at another is his agent.” Stephens v. Yamaha Motor Co. , 627 P.2d 439, 441 (Okla. 1981). “Agency cannot be proven by the reputed declarations of the repute d agent.” Home Owners Loan Corp. v. Thornburg , 106 P.2d 511, 514 (Okla. 1940). A third party as serting apparent authority to bind an alleged principal to a contract must also demonstrate its reliance on the principal’s manifestation and i ts change of position as result thereof. Southwestern Bell Media, Inc. v. Arnold , 819 P.2d 293, 294 (Okla. Ct. App. 1991). There was no evidence of a manifestati on or holding out by the Hospital to Ms. Wilson that Dr. Muckala was the Hos pital’s agent. Dr. Muckala’s alleged declarations alone cannot serve to bind the Hospital under a theory of apparent authority. Plaintiffs argue that the district court abused its discretion when it refused to add a claim for quid pro quo sexual harassment t o the pretrial order in light of the recently decided Collier v. Insignia Financial Group , 981 P.2d 321 (Okla. 1999). “The order following a final pretrial confe rence shall be modified only to prevent manifest injustice.” Fed. R. Civ. P. 16(e) . As discussed above, Dr. Muckala did not have either actual or apparent supe rvisory authority over Ms.- 23 -

Wilson. Absent the possibility that job benefits w ere conditioned “on an employee’s submission to conduct of a sexual nature ” and that “adverse job consequences result from the employee’s refusal to submit to the conduct,” there can be no legitimate claim of quid pro quo sexual h arassment. Hicks , 833 F.2d at
1414. Plaintiffs argue that the district court ruled inco nsistently on Plaintiffs’ claim for tortious interference with business relat ions against Dr. Muckala and that, consequently, Plaintiffs’ counsel failed to p resent evidence on that claim because he thought it “not viable.” However, Plain tiffs do not direct this court to their objection at trial (if there was one), cite n o law supporting reversal, and do not proffer any evidence that they would have submi tted at trial to support the tortious interference claim but for their erroneous belief that the claim was no longer alive. Finally, Plaintiffs appeal a lengthy list of jury i nstructions requested and denied by the district court. Merely listing the r ejected instructions does not satisfy the briefing requirements of this court andwe therefore deem all waived except the instruction pertaining to circumstantial evidence which was briefed in some detail. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 1998). However, that instruction was given as part of a ge neral instruction on the evidence, IV Wilson App. at 916, as agreed to by Pl aintiffs’ counsel. III Hospital- 24 -

Supp. App. at 813. We find no error. Plaintiffs’ motion to supplement their appendix is granted. AFFIRMED in part, REVERSED in part, and REMANDED fo r further proceedings.